'Sir John Henderson of Fordell, a zealous Whig, once came before the court, their lordships having to fix the amount of some discretionary penalty which he had incurred. Eskgrove began to give his opinion in a very low voice, but loud enough to be heard by those next him, to the effect that the fine ought to be £50; when Sir John, with his usual imprudence, interrupted him and begged him to raise his voice, adding that if judges did not speak so as to be heard, they might as well not speak at all. Eskgrove, who never could endure any imputation of bodily infirmity, asked his neighbour, "What does the fellow say?" "He says that, if you don't speak out, you may as well hold your tongue." "Oh, is that what he says? My lords, what I was sayingg was very simpell. I was only sayingg that in my humbell opinyon, this fine could not be less than two hundred and fifty pounds sterlingg"—this sum being roared out as loudly as his old angry voice could launch it.
'His tediousness in charging juries was most dreadful, and he was the only judge who insisted on the old custom of making juries stand during the judge's address. Often have I gone back to the court at midnight, and found him, whom I had left mumbling hours before, still going on, with the smoky unsnuffed tallow candles in greasy tin candlesticks, and the poor despairing jurymen, most of the audience having retired or being asleep; the wagging of his lordship's nose and chin being the chief signs that he was still char-ging.
'A very common arrangement of his logic to juries was this:—"And so, gentle-men, having shown you that the pannell's argument is utterly impossibill, I shall now proceed for to show you that it is extremely improbabill."
'He rarely failed to signalise himself in pronouncing sentences of death. It was almost a matter of style with him to console the prisoner by assuring him that, "whatever your religi-ous persua-shon may be, or even if, as I suppose, you be of no persua-shon at all, there are plenty of rever-end gentle-men who will be most happy for to show you the way to yeternal life."
'He had to condemn two or three persons to die who had broken into a house at Luss, and assaulted Sir James Colquhoun and others, and robbed them of a large sum of money. He first, as was his almost constant practice, explained the nature of the various crimes, assault, robbery, and hamesucken—of which last he gave them the etymology; and he then reminded them that they attacked the house and the persons within it, and robbed them, and then came to this climax—"All this you did; and God preserve us! joost when they were sitten doon to their denner!'"
In concluding his reminiscences of Eskgrove Lord Cockburn says: 'He was the staple of the public conversation; and so long as his old age lasted, he nearly drove Napoleon out of the Edinburgh world.... A story of Eskgrove is still preferred to all other stories. Only, the things that he did and said every day are beginning to be incredible to this correct and fiat age.' Lord Eskgrove died in 1804, at the age of eighty.
CHAPTER XXI
Scott's Anecdote of Lord Kames—Judicial Cruelty—Lord Meadowbank's Marriage—'Declaim, Sir'—Judges and Drinking—Hermand and the Pope—Bacchus on the Bench—Hermand and the Middy.
When Scott dined at Carlton House in 1815, the Prince Regent is said to have been particularly delighted with his guest's anecdotes of the old Scottish judges and lawyers. The following story was considered among the best, and it is one which Scott was fond of telling: 'Lord Kames' (described by Cockburn as 'an indefatigable and speculative but coarse man'), 'whenever he went on the Ayr circuit, was in the habit of visiting Matthew Hay, a gentleman of good fortune in the neighbourhood, and staying at least one night, which, being both of them ardent chess players, they usually concluded with their favourite game. One spring circuit the battle was not concluded at daybreak, so the judge said—"Well, Matthew, I must e'en come back this gate in the harvest, and let the game lie ower for the present"; and back he came in September, but not to his old friend's hospitable house; for that gentleman had in the meantime been apprehended on a capital charge, and his name stood on the Porteous Roll, or list of those who were about to be tried under his former guest's auspices. The laird was indicted and tried accordingly, and the jury returned a verdict of Guilty. The judge forthwith put on his cocked hat (which answers to the black cap in England), and pronounced the sentence of the law in the usual terms—"To be hanged by the neck until you are dead; and may the Lord have mercy upon your unhappy soul!" Having concluded this awful formula in his most sonorous cadence, Kames, dismounting his formidable beaver, gave a familiar nod to his unfortunate acquaintance, and said to him in a sort of chuckling whisper—"And now, Matthew, my man, that's checkmate to you." The Regent laughed heartily at this specimen of judicial humour; and, "I'faith, Walter," said he, "this old big-wig seems to have taken things as coolly as my tyrannical self. Don't you remember Tom Moore's description of me at breakfast—
"The table spread with tea and toast,
Death warrants and the Morning Post"?'